Archive for March, 2010

It has become an increasingly common practice for police to receive anonymous phone calls about “drunk drivers” on the road. These “tips” are typically relayed by the police dispatcher to an officer in the field as a call to investigate a “suspected drunk driver”; the officer is rarely told that the basis of the information is an anonymous caller with no corroboration or reliability. The officer then pulls the car over, fully expecting to encounter an intoxicated person behind the wheel. And, as the psychologists tell us, we tend to see what we expect to see.

With the backing of MADD, this is being actively encouraged in most states now, featuring media campaigns and roadside billboards encouraging citizens to call an emergency phone number to report anyone who appears to be driving in a suspicious manner — what cops and lawyers call "dial-a-drunk". And, increasingly, we are seeing citizens being reported as "drunk" who are merely distracted by a cell phone, for example, or who were involved in a "road rage" incident with the angry caller. The source or facts don’t matter: the dispatcher forwards a "suspected DUI" call to the cop in the field and the reported driver will be pulled over.

Some courts still adhere to the constitutional standards that a tip must be reliable before it can be the basis for a warrantless stop and search (a field sobriety test may be considered a search, and a field breath test definitely is). In the alternative, the Constitution requires the officer to be able to independently observe indications of impaired driving before he can stop the driver.

In an increasing number of states, however, those standards — like so many other “DUI exceptions to the Constitution” — have fallen by the wayside in recent years. Even in those states where the courts continue to apply the Bill of Rights, the prosecution is commonly able to justify the stop because the officer will testify that once he identified the reported car on the road, he followed it and observed it to “weave”. As any cop or defense attorney knows, this is an old, well-worn standby used to justify stopping any vehicle: it is the cop’s word against the citizen’s and, in any event, all cars weave to some degree — particularly if followed for any period of time.

Now consider the wonderful possibilities of anonymous — such as this news story:

SHERIDAN, Wyo. (AP) – Mayor Dave Kinskey passed a sobriety test after a phoned-in tip that said he may have been driving under the influence of alcohol. After he was pulled over Saturday night and passed the field sobriety test, Kinskey had his attorney drive him to a hospital, where he had a blood-alcohol test at his own expense. The test showed that his blood-alcohol level was 0.02 percent, according to Police Chief Mike Card…. City Councilwoman Kathy Kennedy said she was with Kinskey at a motorcycle rally Saturday and saw him drink two beers over two hours. ‘’To me this is just a smear campaign to try to get at him due to politics. I think it is pretty bad when an off-duty city employee calls in to smear the mayor by saying he was intoxicated when he wasn’t,’’ Kennedy said.

What if you were the driver and the caller was your ex-spouse? And you were not a mayor?

Many people who are convicted of drunk driving lose their jobs; it it’s a felony they’re almost certain to. So what happens to a cop who is convicted of drunk driving? What if the conduct involved an accident? What if it’s a felony DUI with injury? What if the drunk driving cop kills someone?

Cops Who Drive Drunk Don’t Lose Their Jobs

New York, NY. March 8 — All of the 55 NYPD cops charged with drunk driving since 1999 pleaded down to non-felony charges and almost every single one of them remained on the force. Although the NYPD can fire any cop "who causes serious physical injury to another person while operating a motor vehicle and is determined to be unfit for duty due to the consumption of alcohol," a news investigation reveals that officers accused of drunk driving often keep their jobs after pleading guilty to lesser offenses like driving while impaired or disorderly conduct.

An NYPD spokesman said officers convicted of felonies are automatically fired, but those who plead down or are convicted of misdemeanors can be punished with suspension, loss of vacation days, alcohol counseling, and probation. Several cops have been accused of drunk driving in recent months, including Officer Andrew Kelly, who hit and killed a preacher’s daughter, Detective Kevin Spellman, who hit and killed a Bronx grandmother, and other cops who crashed into a Tiffany’s store and struck a parked car.

Some cops accused of drunk driving, like Officer Donald Haines, say they’re lucky they’re still on the force. Haines—who joined the NYPD although he had pleaded guilty to driving impaired in 1998—was charged with drunk driving for jumping a curb in Long Island in 2007. After refusing to take a sobriety test and a chemical test, he pleaded guilty to another count of driving while impaired and was ordered to perform 50 hours of community service and pay a $1,000 fine. "All I can say is, I still have my job and I’m very grateful," he said.

Others, like retired detective Daniel Massanova, were unrepentant. Five years before retiring with a pension in January, Massanova pleaded guilty to driving impaired after swerving into oncoming traffic and colliding with another car, injuring two women. He refused a Breathalyzer at the scene and was later found to have a blood alcohol level of .11. "Two girls hit me. … They weren’t two old ladies coming home from BINGO, you know what I mean? They were out drinking and drugging," he said. "If I was such a bad guy, why did I work the last 2-1/2 years in the chief of detectives office unsupervised and alone?" he asked. "I had a couple beers in me and I’m the bad guy because I’m a cop."

As everyone knows, each state has the right to enact DUI laws it feels appropriate for its citizens. The federal government has no authority to dictate to the state legislatures what those laws should be.

That’s the theory. The reality is that federal bureaucrats routinely coerce states by threatening to withhold badly-needed federal funds. And this approach has frequently been used where drunk driving laws are involved. Result: almost all states have now lowered their blood-alcohol limits to .08%, passed per se laws (illegal to drive with .08% blood-alcohol even if sober), required automatic license suspensions by the arresting officer, and imposed "zero tolerance" (.01 or .02%) on drivers under 21.

Lincoln, NE. March 13 — This year, about 2,000 Nebraskans convicted of drunk driving will use ignition interlock devices so they can drive to work, school, alcohol treatment and probation appointments.

But after July 15, they will have to get rides, walk or bike to meet with their probation officers.

The federal government says allowing people with these special permits to drive to probation appointments strays beyond federal regulation. And Nebraska could lose as much as $7.15 million in federal funds a year if senators don’t change the law.

State senators on Friday gave first-round approval to the bill (LB924) that would remove probation appointments as acceptable destinations for people convicted of drunk driving who have the special permits.

"This truly shows the disconnect with the feds," said Sen. Deb Fischer of Valentine, chairwoman of the Transportation and Telecommunications Committee. "Some bureaucrat has decided people don’t need to drive to probation appointments."

The Nebraska Department of Motor Vehicles thought allowing people to drive to probation appointments was logical — part of the rehabilitative process, like driving to alcohol treatment programs. So senators included it in the law covering the ignition interlock program.

Ok, you’ve had two glasses of wine with dinner and it’s time to head home. You feel fine, but throw down a couple of cups of coffee to clear your head just to be sure. Then you pay the bill, walk out to your car, get behind the wheel — and one block after pulling out of the parking lot you see flashing red lights in your rear view mirror.

A couple of minutes later you find yourself struggling to walk heel-to-toe on a straight line. Well, you think, I only had a couple of drinks. A couple of drinks — and coffee….

Field sobriety tests are used by officers as evidence of whether an individual is under the influence of alcohol or not. These commonly involve such excercises as "walk-and-turn", "finger-to-nose" and "one-leg-stand". The greater the intoxication, in theory, the worse will be the performance on these tests.

However, the truth is that these "tests" are highly unreliable and subject to such variables as the individual’s age, weight and athletic ability, the conditions under which the tests are given, the emotional state of the individual, fatigue, unfamiliarity with the tests, proximity to passing traffic, failure of the officer to communicate instructions, and many others.

And then there is caffeine…..

Caffeine and alcohol have a synergistic effect — that is, they combine to produce an accelerated effect. Rather than sobering a person up, as is commonly believed, coffee can actually increase the symptoms of alcohol.

The definitive studies were done by researchers in Great Britain and reported in an article entitled, "Interactions of Alcohol and Caffeine on Human Reaction Time", appearing in the scientific journal Aviation, Space and Environmental Medicine 528 (June 1983).

The conclusions of the scientists:

"Alcohol has always been categorized as a central depressant and caffeine as a central stimulant. Therefore, it should follow that an antagonistic [counter-active] interaction should occur when these two drugs are ingested simultaneously. But as these results illustrate, this is not necessarily the case…

"Caffeine has a synergistic interaction with alcohol…(It) has the effect of potentiating the detrimental effects already induced by alcohol….Motor skills which involve delicate muscular coordination and accurate timing have been found to be adversely affected by caffeine."

Result? Poorer performance on the field sobriety tests — and an arrest for DUI.

Drunk driving is bad. It’s potentially dangerous to human life. It should be punished. So, many years ago a law was passed:

"Thou shalt not drive drunk".

It was a fair law and it addressed the problem. So…what happened? Why do today’s laws punish drivers when they are neither "drunk" nor "driving" — nor even in a "vehicle"?

"Drunk"

The original laws prohibited driving a vehicle "under the influence of alcohol" — commonly referred to as "DUI". In some states, it’s called "DWI" (driving while intoxicated) or "OUI" (operating under the influence). In other words, the accused had to be (1) driving (2) a vehicle (3) while intoxicated to the extent that he or she was unable to safely operate it.

This changed a few years ago with the passage of so-called per se laws. Prosecutors and groups like MADD were frustrated with the difficulties in proving that a driver was, in fact, under the influence. So legislators, anxious for re-election endorsements from prosecutors, police and MADD, passed a new law:

"Thou shalt not drive with a blood alcohol level of .10% or more."

Well, this made it much, much easier to convict citizens suspected of drunk driving. First, prosecutors no longer had to prove that a driver was impaired in his judgment, reflexes, perception and coordination. All they had to do was produce a number: .10%. Never mind that the American Medical Association conducted studies and announced in 1938 that a driver was only "impaired" at .15%. Never mind that MADD was later successful in getting the number reduced further down to .08% (and is lobbying for further reduction to .05%). And never mind that every person’s tolerance to alcohol varies widely — that some drivers may be under the influence at .07%, while others may not be intoxicated at .11%. The law was no longer interested in whether the driver was a danger or not: the crime was in having alcohol in your body.

The second reason the new per se laws were wildly popular with prosecutors, police and MADD was that the arrested citizen could now be charged with both crimes — DUI and .08%. This had two big advantages. First, it gave the prosecutor two shots at the defendant; if he didn’t get him for one, he might get him for the other. Second, it gave juries that were unsure of the defendant’s guilt an option: convict him of one charge but acquit him of the other. Juries that were not unanimous could use this as a compromise — even if some jurors felt the accused was not really proven guilty.

Just to make it even easier, many courts have followed the California Supreme Court in ruling that the breath alcohol reading cannot be questioned on the grounds that it does not accurately reflect the alcohol actually in the person’s blood. See Bransford v. California. (One dissenting justice in that case, less concerned with politics than with common sense, wrote: "The majority…has on its own created the new crime of driving with alcohol in one’s breath.")

"Driving"

The second half of drunk driving is…"driving". This would seem obvious: how can you be driving under the influence if you’re not…well, driving?

No problem. If you have judges who do not want opposition from prosecutors, police and MADD at the next election, you will have strange judicial interpretations of what "driving" means. And in recent years there has been a flood of judicial interpretations which have stretched the word beyond recognition. A couple of examples:

Just as the judges stretched the meaning of "driving" beyond the limits of credulity, so they also expanded the definition of what constituted a "vehicle". Now, a "vehicle" is commonly understood to mean a car or truck, and so it has been applied for decades. But this, too, has been slowly expanded to include such "vehicles" as: